Document ID: A:\TURNER2.TXT
TURNER BROADCASTING SYSTEM, INC., ET AL., APPELLANTS v.
FEDERAL COMMUNICATIONS COMMISSION ET AL.
No. 93-44
SUPREME COURT OF THE UNITED STATES
114 S. Ct. 2445; 1994 U.S. LEXIS 4831; 129 L. Ed. 2d 497; 62
U.S.L.W. 4647
January 12, 1994, Argued
June 27, 1994, Decided
NOTICE: [*1]
The LEXIS pagination of this document is subject to change pending release of the final pu
PRIOR HISTORY: ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBI
DISPOSITION: 819 F. Supp. 32, vacated and remanded.
SYLLABUS:
Concerned that a competitive imbalance between cable television and over-the-air broadcast
mer Protection and Competition Act of 1992. Sections 4 and 5 of the Act require cable tele
appellants, numerous cable programmers and operators, challenged the constitutionality of
with the First Amendment. The court rejected appellants' argument that the provisions war
, 20 L. Ed. 2d 672, 88 S. Ct. 1673, concluding that they are sufficiently tailored to serv
Held: The judgment is vacated, and the case is remanded.
819 F. Supp. 32, vacated and remanded.
JUSTICE KENNEDY delivered the opinion of the Court with respect to Parts I, II, and III-A,
content-neutral restrictions that impose an incidental burden on speech. Pp. 11-41.
(a) Because the must-carry provisions impose special obligations upon cable operators and
gulation, see Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 23 L. Ed. 2d 371, 89 S. Ct.
in the context of cable. Nor is the mere assertion of dysfunction or failure in the cable
generally applicable law against members of the press may sometimes warrant only rational
ned scrutiny. Pp. 11-16.
(b) The must-carry rules are content-neutral, and thus are not subject to strict scrutiny.
it their messages to viewers, not the messages they carry. [*4] The purposes underlyin
ess to free television programming for the 40 percent of Americans without cable. The chal
's communications structure does not indicate that Congress regarded broadcast programming
d are worth preserving against the threats posed by cable. It is also incorrect to suggest
ral Communications Commission and Congress influence the programming offered by broadcast
(c) None of appellants' additional arguments suffices to require strict scrutiny in this c
s to alter their own messages to respond to the broadcast programming they must carry. In
ivered into subscribers' homes. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 41
crutiny is also not triggered by Congress' preference for broadcasters over cable operator
warranted by the fact that the provisions single out certain members of the press--here, c
ators' bottleneck monopoly and the dangers this power poses to the viability of broadcast
iters' Project, Inc. v. Ragland, 481 U.S. 221, 95 L. Ed. 2d 209, 107 S. Ct. 1722, and Minn
(d) Under O'Brien, a content-neutral regulation will be sustained if it furthers an import
an is essential to the furtherance of that interest. Viewed in the abstract, each of the g
multiplicity of sources, and promoting [*7] fair competition in the market for televisio
JUSTICE KENNEDY, joined by THE CHIEF JUSTICE, JUSTICE BLACKMUN, and JUSTICE SOUTER, conclu
erests. The Government must demonstrate that the recited harms are real, not merely conjec
local broadcasting is in genuine jeopardy and in need of the protections afforded by must
cessary to further such interests. On the state of the record developed, and in the absenc
aterial fact still to be resolved on this record, the District Court erred in granting sum
JUSTICE STEVENS, though favoring affirmance, concurred in the judgment because otherwise n
JUDGES: KENNEDY, J., announced the judgment of the Court and delivered the opinion for a u
R, THOMAS, and GINSBURG, JJ., joined, the opinion of the Court with respect to Parts II-C,
d BLACKMUN and SOUTER, JJ., joined. BLACKMUN, J., filed a concurring opinion. STEVENS, J.,
NSBURG, JJ., joined, and in Parts I and III of which THOMAS, J., joined. GINSBURG, J., fil
OPINIONBY: KENNEDY
OPINION: [*9]
JUSTICE KENNEDY announced the judgment of the Court and delivered the opinion of the Co
Sections 4 and 5 of the Cable Television Consumer Protection and Competition Act of 199
whether these provisions abridge the freedom of speech or of the press, in violation of th
The United States District Court for the District of Columbia granted summary judgment
d as developed thus far, we vacate the District Court's judgment and remand the case for f
I
A
The role of cable television in the Nation's communications system has undergone dramat
stry today stands at the center of an ongoing telecommunications revolution with still und
The earliest cable systems were built in the late 1940's to bring clear broadcast telev
., 392 U.S. 157, 161-164, 20 L. Ed. 2d 1001, 88 S. Ct. 1994 (1968); D. Brenner, M. Price,
the reception of nearby broadcast television stations. With the capacity to carry dozens
s an independent source of television programming.
Broadcast and cable television are distinguished by the different technologies through
11] television set within the antenna's range. Cable systems, by contrast, rely upon a p
lephone companies, using cable or optical fibers strung aboveground or buried in ducts to
s in the disruption of traffic on streets and other public property. As a result, the cabl
1370, 1377-1378 (CA10 1981).
Cable technology affords two principal benefits over broadcast. First, it eliminates th
transmitting many more channels than are available through broadcasting, giving subscribe
4 Television and Cable Factbook I-69. And about 40 percent of cable subscribers are served
rebuilds and digital compression technology to increase channel capacity. See, e.g., Cable
The cable television industry includes both cable operators (those who own the physical
. In some cases, cable operators have acquired ownership of cable programmers, and vice ve
ly local or distant broadcast stations, but also the many national and regional cable prog
ertainment Television, CourtTV, The Discovery Channel, American Movie Classics, Comedy Cen
it for the speech of others, transmitting it on a continuous and unedited basis to subscri
ovided by cable networks. . . . Cable systems have no conscious control over program servi
In contrast to commercial broadcast stations, which transmit signals at no charge to vi
esser extent on advertising. In most instances, cable subscribers choose the stations they
us a number of cable programming networks selected by the cable operator. For an additiona
explicit programming, and the like. Many cable systems also offer pay-per-view service, wh
and Business Aspects of Cable and Pay Television @ 5.05[2] (1989); Brenner, supra, at 334
B
On October 5, 1992, Congress overrode a Presidential veto to enact the Cable Television
rate regulation by the Federal Communications Commission (FCC) and by municipal franchisi
[*15] with cable operators; and directs the FCC to develop and promulgate regulations
d 5 of the Act, which require cable operators to carry the signals of a specified number o
Section 4 requires carriage of "local commercial television stations," defined to inclu
ket as the cable system. @ 4, 47 U.S.C. @@ 534(b)(1)(B), (h)(1)(A) (1988 ed., Supp. IV). n
t stations that request carriage. @ 534(b)(1)(B). Cable systems with more than 300 subscri
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 Although a cable system's local television market is defined by regulation, see 47 C
ct @ 4, 47 U.S.C. @ 534(h)(1)(C) (1988 ed., Supp. IV). [*16]
n2 If there are not enough local full power commercial broadcast stations to fill the o
of them. See @ 534(c)(1); see also @ 534(h)(2) (defining "qualified low power station").
operate only if they do not interfere with the signals of full power broadcast stations.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
If there are fewer broadcasters requesting carriage than slots made available under the
ilable, the cable operator is permitted to choose which of these stations it will carry. @
me numerical [*17] channel position as when broadcast over the air. @ 534(b)(6). Furthe
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n3 Cabl
arried on the system. @ 534(b)(5); see also In re Implementation of the Cable Television C
ap in programming). Nor are they required to carry the signals of more than one station af
dited with those stations for purposes of its must-carry obligations. @ 534(b)(5).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Section 5 of the Act imposes similar [*18] requirements regarding the carriage of lo
4 A cable system with 12 or fewer channels must carry one of these stations; a system of b
e. @@ 535(b)(2)(A), (b)(3)(A), (b)(3)(D). The Act requires a cable operator to import dist
s with commercial broadcast stations, @ 5 requires cable system operators to carry the pro
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n4 "Noncommercial educational television stations" are defined to include broadcast sta
ceive grants from the Corporation for Public Broadcasting; or (2) owned and operated by a
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*19]
Taken together, therefore, @@ 4 and 5 subject all but the smallest cable systems nation
em.
C
Congress enacted the 1992 Cable Act after conducting three years of hearings on the str
conclusions Congress drew from its factfinding process are recited in the text of the Act
c power in the cable industry, are endangering the ability of over-the-air broadcast telev
as necessary to correct this competitive imbalance.
In particular, Congress found that over 60 percent of the households with television se
. @ 2(a)(17). This is so, Congress found, because "most subscribers to cable television sy
ystem, or cannot otherwise receive broadcast television services." Ibid. In addition, Cong
geographic area," the overwhelming majority of cable operators exercise a monopoly over ca
d.
According to Congress, this market position gives cable operators the power and the inc
the broadcast signal, refuse to carry new signals, or reposition [*21] a broadcast sig
ons increasingly compete for television advertising revenues." @ 2(a)(14). By refusing car
ereby capture advertising dollars that would otherwise go to broadcast stations. @ 2(a)(15
Congress found, in addition, that increased vertical integration in the cable industry
rs. @ 2(a)(5). Congress also determined that the cable industry is characterized by horizo
mber of media voices available to consumers." @ 2(a)(4).
In light of these technological and economic conditions, Congress concluded that unless
leted, repositioned, or not carried," @ 2(a)(15); the "marked shift in market share" from
"the economic viability of free local broadcast television and its ability to originate qu
D
Soon after the Act became law, appellants filed these five consolidated actions in the
s the Government), challenging the constitutionality of the must-carry provisions. Appella
@ 2284 to hear the actions. 1992 Cable Act @ 23, 47 U.S.C. @ 555 (c)(1) [*23] (1988 e
filed a cross-motion to dismiss. Although the Government had not asked for summary judgme
visions are consistent with the First Amendment. 819 F. Supp. 32 (DC 1993).
The court found that in enacting the must-carry provisions, Congress employed "its regu
itrust and fair trade practice regulatory legislation," ibid., and said that the must-carr
ators' anti-competitive practices." Ibid. The court rejected appellants' contention that t
in intent as well as form, unrelated (in all but the most recondite sense) to the content
isions under the intermediate standard of scrutiny set forth in United States v. O'Brien,
t-carry provisions are sufficiently tailored to serve that interest. 819 F. Supp., at 45-4
Judge Williams dissented. He acknowledged the "very real problem" that "cable systems c
nly to broadcast television stations. In his view, the must-carry rules are content based,
ision to grant favorable access to broadcast programmers rested "in part, but quite explic
uate to justify it. While assuming "as an abstract matter" that the interest in preserving
y tailored to the asserted interest in programming diversity because cable operators "now
e livelihoods depend largely on satisfying audience demand--with a mix derived from congre
This direct appeal followed, see @ 23, 47 U.S.C. @ 555 [*26] (c)(1) (1988 ed., Supp.
II
There can be no disagreement on an initial premise: Cable programmers and cable operato
9, 444, 113 L. Ed. 2d 494, 111 S. Ct. 1438 (1991). Through "original programming or by exe
ariety of topics and in a wide variety of formats." Los Angeles v. Preferred Communication
must-carry rules regulate cable speech in two respects: The rules reduce the number of ch
d channels remaining. Nevertheless, because not every interference with speech triggers th
A
We address first the Government's contention that regulation of cable television should
lation of broadcast speakers than of speakers in other media. Compare Red Lion Broadcastin
Ct. 997 (1943) (radio), with Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 41 L.
(personal solicitation). But the rationale for applying a less rigorous standard of First
The justification for our distinct approach to broadcast regulation rests upon the uniq
pra, at 388-389, 396-399; National Broadcasting Co., 319 U.S., at 226. As a general matter
frequency in the same locale, they would interfere with one another's signals, so that nei
ectromagnetic spectrum and assign specific frequencies to particular broadcasters. See FCC
a scarce resource [that] must be portioned out among applicants") (internal quotation mark
n on the number of speakers who may use the broadcast medium has been thought to require s
roadcast licensees. Red Lion, 395 U.S., at 390. As we said in Red Lion, "where there are s
roadcast comparable to the right of every individual to speak, write, or publish." Id., at
Although courts and commentators have criticized the scarcity rationale since its incep
d see no reason to do so here. The broadcast cases are inapposite in the present context b
gital compression technology, soon there may be no practical limitation on the number of s
ight of these fundamental technological differences between broadcast and cable transmissi
cable regulation. See Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 74, 77 L. Ed. 2d
translate into a justification for regulation of other means of communication") (footnote
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n5 See, e.g., Telecommunications Research and Action Center v. FCC, 255 U.S. App. D.C.
First Amendment 197-209 (1987); M. Spitzer, Seven Dirty Words and Six Other Stories 7-18 (
-Part I: Why Can't Cable Be More Like Broadcasting?, 46 Md. L. Rev. 212, 218-240 (1987); C
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*32]
This is not to say that the unique physical characteristics of cable transmission shoul
l characteristics may have in the evaluation of particular cable regulations, they do not
Although the Government acknowledges the substantial technological differences between
the foundation of our broadcast jurisprudence is not the physical limitations of the elec
vernment maintains, the Red Lion standard of review should also apply to cable. While we a
al [*33] characteristics of broadcast transmission, not the economic characteristics of t
99; Red Lion, supra, at 390. Second, the mere assertion of dysfunction or failure in a spe
ichigan Chamber of Commerce, 494 U.S. 652, 657-658, 108 L. Ed. 2d 652, 110 S. Ct. 1391 (19
Tornillo, 418 U.S., at 248-258.
By a related course of reasoning, the Government and some appellees maintain that the m
verning legislative efforts to correct market failure in a market whose commodity is speec
2, 72 S. Ct. 181 (1951). See Brief for Federal Appellees 17. This contention is unavailing
hile the enforcement of a generally applicable law may or may not be subject to heightened
c., 501 U.S. 560, 566-567, 115 L. Ed. 2d 504, 111 S. Ct. 2456 (1991), [*35] laws that s
481 U.S. 221, 228, 95 L. Ed. 2d 209, 107 S. Ct. 1722 (1987), and so are always subject to
hallenge, the rule of rationality which will sustain legislation against other constitutio
rdens upon cable programmers, some measure of heightened First Amendment scrutiny is deman
B
At the heart of the First Amendment lies the principle that each person should decide f
See Leathers v. Medlock, 499 U.S., at 449 (citing Cohen v. California, 403 U.S. 15, 24, 2
hat stifles speech on account of its message, or that requires the utterance of a particul
e regulatory goal, but to suppress unpopular ideas or information or manipulate the public
marketplace." Simon & Schuster, Inc. v. Members of the New York State Crime Victims Bd.,
For these reasons, the First Amendment, [*37] subject only to narrow and well-under
992) (slip op., at 4); Texas v. Johnson, 491 U.S. 397, 414, 105 L. Ed. 2d 342, 109 S. Ct.
ts content. See Simon & Schuster, 502 U.S., at (slip op., at 11); id., at (KENNEDY
ws that compel speakers to utter or distribute speech bearing a particular message are sub
In contrast, regulations that are unrelated to the content of speech are subject to an in
ey pose a less substantial risk of excising certain ideas or viewpoints from the public di
Deciding whether a particular regulation is content-based or content-neutral is not alw
use of [agreement or] disagreement with the message it conveys." Ward v. Rock Against Raci
hostility--or favoritism--towards the underlying message expressed"). The purpose, or jus
e a content-based purpose may be sufficient in certain circumstances to show that a regula
the sine qua non of a violation of the First Amendment'") (quoting Minneapolis Star & Tri
ough to save a law which, on its face, discriminates based on content. Arkansas Writers' P
As a general rule, laws that by their terms distinguish favored speech from disfavored
may exercise their free-speech rights near polling places [*40] depends entirely on whe
unicipal ordinance permits individuals to "picket in front of a foreign embassy depends en
ference to the ideas or views expressed are in most instances content-neutral. See, e.g. C
c property "is neutral--indeed it is silent--concerning any speaker's point of view"); Hef
s and solicitations take place at designated locations [*41] "applies evenhandedly to a
C
Insofar as they pertain to the carriage of full power broadcasters, the must-carry rule
discretion by compelling them to offer carriage to a certain minimum number of broadcast
those with fewer than 300 subscribers, regardless of the programs or stations they now off
ected or will select. The number of channels a cable operator must set aside depends only
the Act by altering the programming it offers [*42] to subscribers. Cf. Miami Herald P
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n6 The must-carry rules also require carriage, under certain limited circumstances, of
he FCC determines that the station's programming "would address local news and information
w power station's community of license." @ 534(h)(2)(B). We recognize that this aspect of
cular provisions are content-based, and because the parties make only the most glancing re
ral or content-based character of this provision in the first instance on remand.
In a similar vein, although a broadcast station's eligibility for must-carry is based u
ible broadcast stations. In acting upon these requests, the FCC is directed to give "atten
of sporting and other events of interest to the community." @ 534(h)(1)(C)(ii). Again, th
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*43]
The must-carry provisions also burden cable programmers by reducing the number of chann
to offer viewers. Cf. Boos, supra, at 319 (individuals may picket in front of a foreign em
d to content. The rules benefit all full power broadcasters who request carriage--be they
every full power commercial and noncommercial broadcaster eligible for must-carry, provide
It is true that the must-carry provisions distinguish between speakers in the televisio
Broadcasters, which transmit over the airwaves, are favored, while cable programmers, whic
are not a subtle means of exercising a content preference, speaker distinctions of this na
That the must-carry provisions, on their face, do not burden or benefit speech of a par
ulate speech because of the message it conveys. United States v. Eichman, 496 U.S. 310, 31
is nevertheless clear that the Government's asserted interest is related to the suppressio
olence, 468 U.S., at 293; cf. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S ,
Appellants contend, in this regard, that the must-carry regulations are content-based b
at Congress' overriding objective in enacting must-carry was not to favor programming of a
In unusually detailed statutory findings, supra, at 7-9, Congress explained that becaus
ing their affiliated programmers over broadcast stations, @ 2(a)(5), cable operators have
that cable systems carry the signals of local broadcast stations, the continued availabili
mming is . . . free to those who own television sets and do not require cable transmission
television programming, especially for viewers who are unable to afford other means of re
By preventing cable operators from refusing carriage to broadcast television stations,
f noncommercial broadcasters, sufficient viewer contributions, see @ 2(a)(8)(B)--to mainta
mmunication system, and to ensure that every individual with a television set can obtain a
This overriding congressional purpose is unrelated to the content of expression dissemi
to competition from cable systems," is not only a permissible governmental justification,
ed States v. Midwest Video Corp., 406 U.S. 649, 661-662, 664, 32 L. Ed. 2d 390, 92 S. Ct.
The design and operation of the challenged provisions confirm that the purposes underly
[*48] irrespective of the content of their programming. They do not require or prohibi
mpel cable operators to affirm points of view with which they disagree. They do not produc
-carry requirements.
Appellants and the dissent make much of the fact that, in the course of describing the
local news[,] public affairs programming and other local broadcast services critical to an
s." @ 2(a)(8). We do not think, however, that such references cast any material doubt on t
s have played in educating the public does not indicate that Congress regarded broadcast p
e intrinsic value and, thus, are worth preserving against the threats posed by cable. See
the cable programmers who service a given geographic market audience").
The operation of the Act further undermines the suggestion that Congress' purpose in en
dcasters irrespective of the nature of their programming. In fact, if a cable system were
- or [*50] education-oriented programming with a broadcaster that provides very little. A
t 449 (state law imposing tax upon cable television, but exempting other media, is not con
newspapers, or magazines").
In short, Congress' acknowledgment that broadcast television stations make a valuable c
r, in our view, that Congress designed the must-carry provisions not to promote speech of
especially those unable to subscribe to cable, have access to free television programming
We likewise reject the suggestion, advanced by appellants and by Judge Williams in diss
is true that broadcast programming, unlike cable programming, is subject to certain limite
ns of ensuring that particular programs will be shown, or not shown, on cable systems.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n7 See,
of children"); Pub. L. 102-356, @ 16(a), 106 Stat. 954, note following 47 U.S.C. @ 303 (1
easonable access to broadcast airtime for candidates seeking federal elective office); 47
ogramming Inquiry, 44 F. C. C. 2d 2303, 2312 (1960) (requiring broadcasters to air program
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*52]
As an initial matter, the argument exaggerates the extent to which the FCC is permitted
ation "which shall interfere with the [broadcasters'] right of free speech." 47 U.S.C. @ 3
[@ 326] from interfering with the free exercise of journalistic judgment." Hubbard Broadc
ing that must be offered by broadcast stations; for although "the Commission may inquire o
e public ought to hear." Network Programming Inquiry, Report and Statement of Policy, 25 F
r grounds sub nom. Action for Children's Television v. FCC, 261 U.S. App. D.C. 253, 821 F.
Stations licensed to broadcast over the special frequencies reserved for "noncommercial
sis, may not accept financial consideration in exchange for particular programming, and ma
. C. C. 2d 746, 751 (1984); Educational Broadcast Stations, 90 F. C. C. 2d 895 (1982), mod
[*54] any specific quantity of "educational" programming or any particular "educationa
st, convenience or necessity." En Banc Programming Inquiry, 44 F. C. C. 2d 2303, 2312 (196
run the collateral risk of stifling the creativity and innovative potential of these stati
0 F. C. C. 2d 948 (1979).
In addition, although federal funding provided through the Corporation for Public Broad
isions. See 47 U.S.C. @@ 396 [*55] (g)(1)(D) (directing CPB to "carry out its purposes
nterference with, or control of, program content or other activities"), @ 398(a) (CPB oper
Indeed, our cases have recognized that Government regulation over the content of broadc
U.S., at 378-380, 386-392 (invalidating under the First Amendment statute forbidding any
tee, 412 U.S., at 126 (describing "the risk of an enlargement of Government control over t
FCC and Congress actually influence the programming offered by broadcast stations, it wou
re Congress or the FCC exercised more intrusive control over the content of broadcast prog
In short, the must-carry provisions are not designed to favor or disadvantage speech of
the provisions, Congress sought to preserve the existing structure of the Nation's broadca
available as a source of video programming for those without cable. Appellants' ability to
must-carry. Cf. Arizona v. California, 283 U.S. 423, 455-457, 75 L. Ed. 1154, 51 S. Ct. 52
ed illicit legislative motive." United States v. O'Brien, 391 U.S. 367, 383, 20 L. Ed. 2d
D
Appellants advance three additional arguments to support their view that the must-carry
e programmers, and (3) single out certain members of the press for disfavored treatment. N
1
Appellants maintain that the must-carry provisions trigger strict scrutiny because they co
Ct. 2831 (1974), appellants say this intrusion on the editorial control of cable operators
Tornillo affirmed an essential proposition: The First Amendment protects the editorial
est by the candidate and without cost, the candidate's reply in equal space and prominence
d an impermissible content-based burden on newspaper speech. Because the right of access a
content." 418 U.S., at 256. We found, and continue to recognize, that right-of-reply stat
We explained that, in practical effect, Florida's right-of-reply statute would deter ne
"Faced with the penalties that would accrue to any newspaper that published news or com
ation of the Florida statute, political and electoral coverage would be blunted or reduced
Moreover, by affording mandatory access to speakers with which the newspaper disagreed, th
tilities Comm'n of Cal., 475 U.S. 1, 11, 89 L. Ed. 2d 1, 106 S. Ct. 903 (1986) (plurality
The same principles led us to invalidate a similar content-based access regulation in P
shed by a consumer group critical of the utility's ratemaking practices. Although the acce
the same strict First Amendment scrutiny applied. Like the statute in Tornillo, the regula
bserved that in order to avoid the appearance that it agreed with the group's views, the u
"kind of forced response," the plurality explained, "is antithetical to the free discussi
Tornillo and Pacific Gas & Electric do not control this case for the following reasons.
spoken by cable operators and thus exact no content-based penalty. Cf. Riley v. National
ccess to broadcasters on the ground that the content of broadcast programming will counter
c Gas & Electric, supra, at 14 [*62] (access "awarded only to those who disagree with a
Second, appellants do not suggest, nor do we think it the case, that must-carry will fo
Expression, 1988 Duke L. J., at 379 ("Other than adding new ideas--offensive, insightful o
there appears little risk that cable viewers would assume that the broadcast stations car
st once every hour, 47 CFR @ 73.1201 (1993), and it is a common practice for broadcasters
7, 64 L. Ed. 2d 741, 100 S. Ct. 2035 (1980) [*63] (noting that the views expressed by s
ue in Tornillo, no aspect of the must-carry provisions would cause a cable operator or cab
Finally, the asserted analogy to Tornillo ignores an important technological difference
ses far greater control over access to the relevant medium. A daily newspaper, no matter h
ly newspapers published in other cities. Thus, when a newspaper asserts exclusive control
The same is not true of cable. When an individual subscribes to cable, the physical con
ming that is channeled into the subscriber's home. Hence, simply by virtue of its ownershi
r, unlike speakers in other media, can thus silence the voice of competing speakers with a
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n8 As one commentator has observed: "The central dilemma of cable is that it has unlimi
e system is itself a publisher, it may restrict the circumstances under which it allows ot
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*65]
The potential for abuse of this private power over a central avenue of communication ca
assessed for First Amendment purposes by standards suited to it, for each may present its
ate interests not restrict, through physical control of a critical pathway of communicatio
s & Electric require strict scrutiny of the access rules in question here.
2
Second, appellants urge us to apply strict scrutiny because the must-carry provisions favo
ble programmers who would have secured carriage in the absence of must-carry may now be dr
er the First Amendment because the government may not "restrict the speech of some element
To the extent appellants' argument rests on the view that all regulations distinguishin
aw prohibiting individuals from spending more than $ 1,000 per year to support or oppose a
f elections." Buckley, 424 U.S., at 48. We rejected [*67] that argument with the observ
iety." Id., at 49, n. 55.
Our holding in Buckley does not support appellants' broad assertion that all speaker-pa
or the substance of what the favored speakers have to say (or aversion to what the disfavo
challenge to differential tax treatment of veterans groups and other charitable organizat
that effect"). Because the expenditure limit in Buckley was designed to ensure that [*68]
Buckley, supra, at 17 ("it is beyond dispute that the interest in regulating the . . . giv
382). Indeed, were the expenditure limitation unrelated to the content of expression, the
stands for the proposition that laws favoring some speakers over others demand strict scru
The question here is whether Congress preferred broadcasters over cable programmers bas
oadcast stations on the belief that the broadcast television industry is in economic peril
ters and not cable programmers does not call for strict scrutiny under our precedents.
3
Finally, appellants maintain that strict scrutiny applies because the must-carry provision
pport, appellants point out that Congress has required cable operators to provide carriage
te master antenna television (SMATV) systems. Relying upon our precedents invalidating dis
s Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575, 75 L. Ed. 2d 295, 103 S
es a particular danger of abuse by the government and should be presumed invalid.
Regulations that discriminate among media, or among different speakers within a single
wspapers. We subjected the tax to strict scrutiny for two reasons: first, because it appli
o Grosjean, supra (invalidating Louisiana tax on publications with weekly circulations abo
ed to general interest magazines but exempted religious, professional, trade, and sports m
nated on the basis of subject matter. Arkansas Writers' Project, supra, at 229-230. Relyin
It would be error to conclude, however, that the First Amendment mandates strict scruti
8 (1991), for example, we upheld against First Amendment challenge the application of a ge
ers illustrates, the fact that [*72] a law singles out a certain medium, or even the pre
circumstances." Id., at 444. The taxes invalidated in Minneapolis Star and Arkansas Writer
that an illicit governmental motive was behind either of the taxes, both were structured
Star, 460 U.S., at 585. But such heightened scrutiny is unwarranted when the differential
The must-carry provisions, as we have explained above, are justified by special charact
ppellants do not argue, nor does it appear, that other media--in particular, media that tr
t should come as no surprise, then, that Congress decided to impose the must-carry obligat
In addition, the must-carry provisions are not structured in a manner that carries the
ct few. See 47 U.S.C. @ 534(b)(1) (1988 ed., Supp. IV) (only cable systems with fewer than
4] narrowly targeted regulations in Minneapolis Star and Arkansas Writers' Project. For
tems "offering a wide variety of programming" because the tax was not "likely to stifle th
III
A
In sum, the must-carry provisions do not pose such inherent dangers to free expression,
ct Court that the appropriate standard by which to evaluate the constitutionality of must-
91 U.S. 781, 105 L. Ed. 2d 661, 109 S. Ct. 2746 (1989); United States v. O'Brien, 391 U.S.
Under O'Brien, a content-neutral regulation will be sustained if
"it furthers an important or substantial governmental interest; if the governmental intere
urtherance of that interest." Id., at 377.
To satisfy this standard, a regulation need not be the least speech-restrictive means of a
erest that would be achieved less effectively absent the regulation.'" Ward, supra, at 799
he means chosen do not "burden substantially more speech than is necessary to further the
Congress declared that the must-carry [*76] provisions serve three interrelated inte
sources, and (3) promoting fair competition in the market for television programming. S.
of free expression," O'Brien, 391 U.S., at 377, or to the content of any speakers' messag
In the Communications Act of 1934, Congress created a system of free broadcast service
t. 1083, 47 U.S.C. @ 307(b). Congress designed this system of allocation to afford each co
e Co., 392 U.S. 157, 173-174, 20 L. Ed. 2d 1001, 88 S. Ct. 1994 (1968); Wollenberg, The FC
we recognized in Southwestern Cable, supra, the importance of local broadcasting outlets "
at 177. The interest in maintaining the local broadcasting structure does not evaporate si
households still rely on broadcast stations as their exclusive source of television progr
ompetition from cable systems" is an important federal interest. 467 U.S., at 714.
Likewise, assuring that the public has access to a multiplicity of information sources
tions policy that "the widest possible dissemination of information from diverse and antag
ress v. United States, 326 U.S., at 20); see also FCC v. WNCN Listeners Guild, 450 U.S. 58
nally, the [*79] Government's interest in eliminating restraints on fair competition is
Lorain Journal Co. v. United States, 342 U.S. 143, 96 L. Ed. 162, 72 S. Ct. 181 (1951); A
B
That the Government's asserted interests are important in the abstract does not mean, h
t anticipated harms, it must do more than simply "posit the existence of the disease sough
t merely conjectural, and that the regulation will in fact alleviate these harms in a dire
may not simply assume that the ordinance will always advance the asserted state interests
, 36 (CADC 1977) ("[A] 'regulation perfectly reasonable and appropriate in the face of a g
Thus, in applying O'Brien scrutiny we must ask first whether the Government has adequat
to the foregoing question, the Government still bears the burden of showing that the reme
the state of the record developed thus far, and in the absence of findings of fact from t
In defending the factual necessity for must-carry, the Government relies in principal part
a)(16). See Brief for Federal Appellees 31-32. The Government contends that this finding,
between two technical, rapidly changing, and closely interdependent industries--broadcast
We agree that courts must accord substantial deference to the predictive judgments of C
gment of the Legislative Branch" should not be ignored "simply because [appellants] cast [
t of these events based on deductions and inferences for which complete empirical support
81 S. Ct. 435 (1961). As an institution, moreover, Congress is far better equipped than t
tion Survivors, 473 U.S. 305, 331 n. 12, 87 L. Ed. 2d 220, 105 S. Ct. 3180 (1985). And Con
.
That Congress' predictive judgments are entitled to substantial deference does not mean
to legislative findings does "not foreclose our independent judgment of the facts bearing
ications, Inc. v. Virginia, 435 U.S. 829, 843, 56 L. Ed. 2d 1, 98 S. Ct. 1535 (1978). This
tual predictions with our own. Rather, it is to assure that, in formulating its judgments,
7) [*84] ("When trenching on first amendment interests, even incidentally, the governme
The Government's assertion that the must-carry rules are necessary to protect the viabi
roadcast stations will be refused carriage on cable systems; and (2) that the broadcast st
As support for the first proposition, the Government relies upon a 1988 FCC study showi
adcast stations on at least one occasion. See Cable System Broadcast Signal Carriage Surve
ate, however, the time frame within which these drops occurred, or how many [*85] of th
ed shifting the channel positions of one or more local broadcast stations, and that, in mo
The parties disagree about the significance of these statistics. But even if one accept
hat broadcasters so affected would suffer financial difficulties as a result. Without a mo
to establish that the dropped or repositioned broadcasters would be at serious risk of fi
s. [*86] We think it significant, for instance, that the parties have not presented an
reduction in operating revenues as a result of their being dropped from, or otherwise dis
The paucity of evidence indicating that broadcast television is in jeopardy is not the
., the extent to which cable operators will, in fact, be forced to make changes in their c
xtent to which cable operators can satisfy their must-carry obligations by devoting previo
O'Brien analysis, for unless we know the extent to which the must-carry [*87] provisio
television. Ward, 491 U.S., at 799. Finally, the record fails to provide any judicial fin
mmunications, 492 U.S., at 129.
In sum, because there are genuine issues of material fact still to be resolved on this
Ed. 2d 202, 106 S. Ct. 2505 (1986). Because of the unresolved factual questions, the impor
dence presented, we think it necessary to permit [*88] the parties to develop a more th
rovisions.
The judgment below is vacated, and the case is remanded for further proceedings consist
It is so ordered.
CONCURBY: BLACKMUN; STEVENS (In Part); O'CONNOR (In Part); GINSBURG (In Part)
CONCUR: JUSTICE BLACKMUN, concurring.
I join JUSTICE KENNEDY's opinion, which aptly identifies and analyzes the First Amendme
cording substantial deference to the predictive judgments of Congress, see, e.g., Columbia
body has compiled an extensive record in the course of reaching its judgment. Nonetheless
this case there remain a few unresolved issues of material fact, a remand is appropriate.
, which were submitted to defeat a motion for summary judgment, are not adequate to suppor
JUSTICE STEVENS, concurring in part and concurring in the judgment.
As JUSTICE KENNEDY has ably explained, the "overriding congressional purpose" of the ch
purpose that is "unrelated to the content of expression." Ante, at 22. The public interest
onably substantial. Ante, at 39-40. The must-carry provisions [*90] are amply "justifie
ity of broadcast television." Ante, at 37. Cable operators' control of essential facilitie
While I agree with most of JUSTICE KENNEDY's reasoning, and join Parts I, II(C), II(D),
isions should be affirmed. The District Court majority evaluated @@ 4and 5 as content-neut
ched the correct result the first time around. Economic measures are always subject to sec
ccomplished its goals more efficiently [*91] through other means; whether it correctly
debate long after the 1992 Act has been repealed or replaced by successor legislation. But
on and that must-carry is an appropriate means of minimizing that risk. n1
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 I have no quarrel with JUSTICE KENNEDY's general statement that the question for the
ed not compile or restrict itself to a formal record in the manner required of a judicial
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
As JUSTICE KENNEDY [*92] recognizes, ante, at 41-42, findings by the Congress, parti
sustain the must-carry provisions against facial attack. Congress's conclusion, for exampl
tration." See id., at 44. Because 60% of American households have cable, and because most
r substantial economic harm. It is also clear that cable operators--particularly (but not
sters. Thus, even if Congress had had before it no historical evidence that terminations o
f vertical integration in the industry, would motivate such conduct in the near future. n4
that given their market power they may soon do so. n5
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 As JUSTICE KENNEDY observes, ante, at 42-43, we cannot abdicate our responsibility t
d that have only incidental effects on speech merit greater deference than those supportin
. Virginia, 435 U.S. 829, 843, 56 L. Ed. 2d 1, 98 S. Ct. 1535 (1978) (both cited ante, at
, at 42-43). [*94]
n3 But see H.R. Rep. No. 628, 102 Cong., 2d Sess. 50-57 (1992); Sen. Rep. No. 92, 102d
n4 As Judge Jackson put it in his opinion for district court:
"Even if the state of the broadcasting industry is not now as parlous as the defendants co
e the attendant market power. The Court does not find improbable Congress' conclusion that
programmers' access to the bulk of any prospective viewing audience; unconstrained, cable
the factfinding abilities of the nation's legislature, . . . the Court must conclude that
n5 See @ 2(a)(16) ("As a result of the economic incentive that cable systems have to de
ing will be seriously jeopardized."); see also @ 2(a)(15), @ 2(a)(17).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*95]
An industry need not be in its death throes before Congress may act to protect it from
with the dangers posed by cable operators' exclusive control of what is fast becoming the
the antitrust laws; one need only refer to undisputed facts concerning the structure of th
cting to protect vulnerable ones, for the interest in preserving access to free television
l likely avail themselves of the remunerative "retransmission consent" procedure of @ 6, t
cure carriage through @ 6 rather than @ 4 will depend upon future developments; the very u
ted or entirely complete ex ante justification.
JUSTICE KENNEDY asks the three-judge panel to take additional evidence on such matters
way," ante, at 41, and "the extent to which cable operators will, in fact, be forced to ma
ust-carry provisions, additional evidence is not necessary to resolve the question of thei
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n6 The must-carry obligations may be broader than necessary to protect vulnerable broad
erators to carry broadcasters they would have carried even in the absence of a statutory o
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*97]
To predicate the facial validity of the must-carry provisions upon forecasts of the ult
ters the lead opinion singles out for further review--for example, "the degree to which ca
ntities who are parties to this case. At best, a remand for consideration of such factors
tion (perhaps by opting to drop cable programs rather than seeking to increase total chann
onclusion could be confidently drawn, if ever, only after the must-carry scheme has been t
relationship between the cable and broadcasting industries.
It is thus my view that we should affirm the judgment of the District Court. Were I to
nited States, 325 U.S. 91, 134, 89 L. Ed. 1495, 65 S. Ct. 1031 (1945) (Rutledge, J., concu
further proceedings.
DISSENTBY: O'CONNOR (In Part); GINSBURG (In Part)
DISSENT: JUSTICE O'CONNOR, with whom JUSTICE SCALIA and JUSTICE GINSBURG join, and with wh
There are only so many channels that any cable system can carry. If there are fewer cha
and Competition Act [*99] of 1992, Pub. L. 102-385, 106 Stat. 1460, Congress made a c
opped and a broadcaster who is retained. The question presented in this case is whether th
I
A
The 1992 Cable Act implicates the First Amendment rights of two classes of speakers. Fi
actually originate most of the programming they show, the Court correctly holds that they
rs, bookstores, and Reader's Digest, no less communication than is creating the speech in
Second, the Act deprives a certain class of video programmers--those who operate cable
t set aside by the must-carry provisions. A cable programmer that might otherwise have bee
t ordered all movie theaters to reserve at least one-third of their screening for films ma
I-A and II-B of its opinion, which I join, cable programmers and operators stand in the sa
Under the First Amendment, it is normally not within the government's power to decide w
nd manner restrictions, but this is in large part precisely because such restrictions appl
01] political check that prevents them from being unduly burdensome. Laws that single ou
ota Comm'r of Revenue, 460 U.S. 575, 584, 591-592, 75 L. Ed. 2d 295, 103 S. Ct. 1365 (1983
I agree with the Court that some speaker-based restrictions--those genuinely justified
dcasters over cable programmers is justified with reference to content. The findings, enac
dment interest in promoting a diversity of views provided through multiple technology medi
ng interest in educating its citizens." @ 2(a)(8)(A). "A primary objective and benefit of
ntinuation." @ 2(a)(10). "Broadcast television stations continue to be an important source
Similar justifications are reflected in the operative provisions of the Act. In determi
ng into account such factors as . . . whether any other [eligible station] provides news c
)(C)(ii) (1988 ed., Supp. IV). In determining whether a low-power [*103] station is eli
vision broadcast stations." @ 4, 47 U.S.C. @ 534(h)(2)(B) (1988 ed., Supp. IV). Moreover,
th @ 5. These provisions may all be technically severable from the statute, but they are s
Preferences for diversity of viewpoints, for localism, for educational programming, and
ause they are controversial or offensive. They may be quite benignly motivated. But benign
York State Crime Victims Bd., 502 U.S.
, (1991) (slip [*104] op., at 10-11); Arkansas Writers' Project, Inc. v. Raglan
it disapproves. It also generally prohibits the government from excepting certain kinds o
7, 104 S. Ct. 3262 (1984); Metromedia, Inc. v. San Diego, 453 U.S. 490, 514-515, 69 L. Ed.
Ct. 2882 (1981) (plurality); Carey v. Brown, 447 U.S. 455, 466-468, 65 L. Ed. 2d 263, 100
2d 471, 85 S. Ct. 453 (1965) [*105] (Black, J., concurring); see also R. A. V. v. St. P
").
This is why the Court is mistaken in concluding that the interest in diversity--in "acc
d to the suppression of free expression," ante, at 39 (emphasis added and internal quotati
iters' Project, supra, is not related to the suppression of speech; the interest in giving
e content of speech--to its communicative impact. The interest in ensuring access to a mul
say.
B
The Court dismisses the findings quoted above by speculating that they do not reveal a
evision have some intrinsic value and, thus, are worth preserving against the threats pose
es, it is fair to assume that those findings reflect the basis for the legislative decisio
slip op., at 12-13) (relying on recitals in a city council resolution as evidence of the j
Moreover, it does not seem likely that Congress would make extensive findings merely to
ly it does--but that broadcasters should be preferred over cable programmers. The best exp
in part on the content of broadcasters' speech. To say in the face of the findings that th
ith which we must normally approach speaker-based restrictions. See Minneapolis Star & Tri
It may well be that Congress also had other, content-neutral, purposes in mind when ena
on. In fact, we have often struck down statutes as being impermissibly content based even
ral revenue measure); Regan v. Time, Inc., supra (striking down content-based exemptions i
tion ordinance); Carey v. Brown, supra, at 466-468 (striking down on content discriminatio
nough to make the statute content based, and neither is evidence that some legislators vot
ral justification [*109] is present.
C
Content-based speech restrictions are generally unconstitutional unless they are narrow
at the goals of the law be legitimate, or reasonable, or even praiseworthy. There must be
The interest in localism, either in the dissemination of opinions held by the listeners
rest test. It is a legitimate interest, perhaps even an important one--certainly the gover
ons. It is for private speakers and listeners, not for the government, to decide what frac
rue of the interest in diversity of viewpoints: While the government may subsidize speaker
v. FCC, 497 U.S. 547, 612-613, 111 L. Ed. 2d 445, 110 S. Ct. 2997 (1990) (O'CONNOR, J., d
The interests in public affairs programming and educational programming seem somewhat w
ould impose educational content requirements on, say, newsstands, bookstores, or movie the
But even assuming arguendo that the Government could set some channels aside for educat
inment programmers. It equally burdens CNN, C-SPAN, the Discovery Channel, the New Inspira
Even if the Government can restrict entertainment in order to benefit supposedly more v
rnment may draw content-based distinctions to serve its goals, the restrictions must serve
45 L. Ed. 2d 125, 95 S. Ct. 2268 (1975).
Finally, my conclusion that the must-carry rules are content based leads [*112] me to
he content of speech, the rules restrict the ability of cable operators to put on the prog
Electric Co., 475 U.S., at 14-15 (plurality); id., at 23-24 (Marshall, J., concurring in j
II
Even if I am mistaken about the must-carry provisions being content based, however, in
tition and preservation of free television, they nonetheless restrict too much speech that
Sometimes, a cable system's choice to carry a cable programmer rather than a broadcaste
causes harm, however, does not justify restricting the whole category. If Congress wants t
ke, it may do that. But it may not, in the course of advancing these interests, restrict c
"A regulation is not 'narrowly tailored'--even under the more lenient [standard applica
& Schuster, 502 U.S., at - , n. ** (slip op., at 15-16, n. **) (internal quotation m
147, 84 L. Ed. 155, 60 S. Ct. 146 (1939). [*114] If the government wants to avoid fraud
4 U.S. 620, 63 L. Ed. 2d 73, 100 S. Ct. 826 (1980); see also Edenfield v. Fane, 507 U.S.
eholders put up, but it may not cut off access to homes whose residents are willing to hea
ression are suspect. Precision of regulation must be the touchstone . . . ." NAACP v. Butt
The must-carry provisions are fatally overbroad, even under a content-neutral analysis:
room for the cable programmer would survive without cable access. None of the factfinding
rest are implicated in all, or even most, of the situations in which must-carry makes a di
rotect those broadcasters that are put in danger of bankruptcy, without unnecessarily rest
III
Having said all this, it is important to acknowledge one basic fact: The question is no
ithin relatively broad limits. Under my view, the answer is the cable operator. Most of th
he viewers' preferences will not always prevail. Our recognition that cable operators are
I have no doubt that there is danger in having a single cable operator decide what mill
steps to foster competition among cable systems. @ 3(a), 47 U.S.C. @ 543(a)(2) (1988 ed.,
or even simple devices that would let people easily switch from cable to over-the-air broa
Congress may also be able to act in more mandatory ways. If Congress finds that cable o
ers who otherwise would not get carriage. See PruneYard Shopping Center v. Robins, 447 U.S
ligate cable operators to act as common carriers for some of their channels, with those ch
f Congress may demand that telephone companies operate as common carriers, it can ask the
But the First Amendment as we understand it today rests on the premise that it is gover
ment even when it is trying to serve concededly praiseworthy [*118] goals. Perhaps Cong
itutional requirements, requirements that were not complied with here. Accordingly, I woul
JUSTICE GINSBURG, concurring in part and dissenting in part.
Substantially for the reasons stated by Circuit Judge Williams in his opinion dissentin
aside just over one-third of their channels for local broadcast stations, reflects an unw
ion, and join JUSTICE O'CONNOR's opinion concurring in part and dissenting in part.
The "must-carry" rules Congress has ordered do not differentiate on the basis of "viewp
(1992) (STEVENS, J., concurring in judgment) (slip op., at 15) ("We have implicitly di
. The rules, however, do reflect a content preference, and on that account demand close sc
The Court has identified as Congress' "overriding objective in enacting must-carry," th
allegedly overriding, content-neutral purpose. Ante, at 21-24, 43-45. But an intertwined o
te, at 3-4, 6-7 (O'CONNOR, J., dissenting).
As Circuit Judge Williams stated:
"Congress rested its decision to promote [local broadcast] stations in part, but quite exp
ces critical to an informed electorate.'" 819 F. Supp., at 58, quoting 1992 Cable Act, @ 2
Moreover, as Judge Williams persuasively explained, "[the] facts do not support an inferen
at 63. "The paucity of evidence indicating that broadcast television is in jeopardy," see